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Court of Criminal Appeal 17 April 2026

YA v R (disqualification)

[2026] NSWCCA 37

Assault & violenceHomicidePublic order & justice offences
COURTS AND JUDGES APPREHEN SION OF BIAS WHETHER FAIR APPLICATION UNANIMOUSLY RE FUSED

Citation: YA v R (disqualification) [2026] NSWCCA 37
Court: Court of Criminal Appeal (New South Wales)
Date: 17 April 2026
Judge(s): N Adams CJ at CL, Rigg J, Coleman J

Background

The applicant, YA, was sentenced by Hamill J in the Supreme Court to an aggregate sentence of 6 years and 9 months' imprisonment (with a non-parole period of 4 years and 3 months) for the manslaughter of one victim and the wounding with intent to cause grievous bodily harm of two others. These offences arose from a violent confrontation between two groups of young men on suburban streets in Blacktown on 1 September 2021, during which one person was fatally stabbed and two others seriously wounded. YA pleaded guilty to these offences on 1 November 2024 and was sentenced alongside four co-offenders who had been convicted after trial.

YA sought leave to appeal against the severity of his sentence. At the commencement of the appeal hearing before the Court of Criminal Appeal, his Senior Counsel applied for Rigg J to disqualify herself from the bench on the ground of apprehended bias. The basis for the application was that prior to her appointment to the Supreme Court in July 2024, Rigg J — then the NSW Senior Public Defender — had acted for a juvenile, KL, who was charged with an unrelated murder. KL had a connection with the events underlying YA's offences: KL was present at the Blacktown confrontation on the night in question and was associated with the deceased victim's group. However, KL was not a victim of any of the three offences, did not give evidence at the co-offenders' trial, was not mentioned in the sentencing judgment, and was not referred to in YA's written submissions on appeal. The Court unanimously refused the disqualification application.

  • Whether a fair-minded lay observer might reasonably apprehend that Rigg J might not bring an impartial mind to the hearing of YA's sentence severity appeal, given her prior professional role acting for KL in unrelated proceedings.
  • Whether there was a logical connection between the basis for the disqualification application (the judge's prior representation of KL) and a feared departure by the judge from deciding the appeal on its factual and legal merits.

Decision

The Court applied the well-established test for apprehended bias set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and elaborated upon in Charisteas v Charisteas (2021) 273 CLR 289 and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148. The relevant question is whether a fair-minded lay observer, properly informed of the material facts, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.

Rigg J, delivering the principal reasons (with which N Adams CJ at CL agreed), carefully identified the nature of the connection between KL and the proceedings. KL was present at the Blacktown confrontation and associated with the deceased's group, but was not a victim of any charged offence, did not give evidence, was not the subject of any relevant out-of-court representations relied upon by any party, and was entirely absent from the sentencing judgment under appeal. His name appeared in the respondent's submissions only in connection with the statutory non-publication order applicable to juveniles.

The Court found that there was no logical connection between Rigg J's prior professional role representing KL in an unrelated matter and any risk that she might depart from deciding YA's appeal on its factual and legal merits. The appeal raised discrete sentencing issues — parity, the treatment of pre-sentence custody, the onerousness of custody, and manifest excess — none of which involved KL or called upon any knowledge, allegiance, or interest arising from the prior representation. In the absence of such a logical connection, the disqualification application could not succeed. The application was unanimously refused.

Orders Made

  • The application that Rigg J disqualify herself from hearing the matter was dismissed.
  • The substantive appeal against sentence severity proceeded (the judgment addresses only the disqualification application; the appeal outcome is not addressed in this decision).

Key Takeaways

  • The two-step test from Ebner v Official Trustee in Bankruptcy remains central to apprehended bias applications: the Court of Criminal Appeal reaffirmed that a party must identify both the matter that might lead to a deviation from impartial decision-making and a logical connection between that matter and the feared departure from deciding the case on its merits. A mere association or prior professional relationship was held insufficient without that logical link.
  • Prior professional roles do not automatically give rise to apprehended bias: where a judge, before appointment, acted for a person connected to the broader circumstances of a case, this does not, without more, satisfy the apprehended bias test. The connection must be one that a fair-minded lay observer could reasonably regard as bearing on the judge's capacity to decide the specific issues in dispute impartially.
  • A connected person's peripheral role in the proceedings significantly weakens the case for disqualification: the Court found that because the former client played no evidential or forensic role in the appeal and was not the subject of any factual finding or submission, the basis for the application was considerably undermined.
  • In dismissing the disqualification application, the Court observed that the grounds of appeal (parity, pre-sentence custody, and manifest excess) were entirely unrelated to the judge's former client, and this absence of any realistic connection between the specific issues on appeal and the identified matter further confirmed that the application lacked a sound basis.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- In the matter of KL [2024] NSWSC 1334
- QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
- R v Diallo & Ors (No 7) [2024] NSWSC 978
- R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650
- R v KL [2025] NSWSC 1398
- R v KL [2025] NSWSC 1574
- R v KL [2025] NSWSC 1414